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When Can Old, Prior Convictions Be Used Against Me?

When facing a criminal prosecution, a common fear among defendants is that prior convictions will be raised during trial. Unfortunately, in many circumstances, a defendant may not be able to prevent evidence of prior convictions from being admitted.

Generally, whether a prior conviction can be used will depend largely on either a state's rules of evidence, or the federal rules of evidence. However, state rules generally correspond to the federal rules and closely follow the same parameters.

Federal Rule of Evidence on Prior Convictions

Under the Federal Rule of Evidence (often referred to as the FRE) section 609, prior criminal convictions can only be used if the conviction was punishable by more than one year in prison, and the value of the evidence does not result in an unfair advantage to the prosecution. Lawyers and courts refer to this later inquiry as "whether the probative value outweighs the prejudice" to the defendant. However, if the conviction relates to an act of dishonesty, such as fraud or a false statement, it may nevertheless be admitted.

Another caveat to whether a prior conviction can be used under the federal rules relates to how long ago the conviction occurred. Convictions older than 10 years must be much more relevant and valuable (probative) in order to be seen as not providing an unfair advantage to the prosecution (prejudicing a defendant). Lastly, if a defendant had their conviction pardoned, expunged, or otherwise removed from the public record, or reversed, these may be properly excluded.

State Rules of Evidence on Prior Convictions

Most state evidence codes follow the model set forth by the federal rules, but have minor variations on when prior convictions can be used. For example, in California, a primary determining factor involves whether the conviction was a felony or not, regardless of the duration of punishment, as under California Evidence Code section 788 only felonies can be used against a defendant.

Most criminal actions occur in state court, and as such, defendants may wish to review their state's specific evidence code sections. If you're facing a criminal prosecution and you have prior convictions, seeking the help of an experienced criminal defense attorney can help keep prior convictions out of a jury's consideration.

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